I took my UH Manoa students to Professor Williamson Chang’s class last week. I was surprised and honored to have Prof. Chang write a guest blog on a topic that couldn’t be more relevant right now – the seeming failure of Fed-Rec.
Williamson B.C. Chang, Professor of Law
Speaking for himself
On Friday, November 27, 2015, the attempt of the State of Hawaii, and the United States Department of Interior’s attempt to achieve the federal recognition of Native is, in my words in the Star-Advertiser “dead,” and “over.” This prediction is based on Justice Kennedy’s order halting the counting of ballots [I am a candidate to opposed federal recognition] and the certifying of winners.
Attorneys for “Na’i Aupuni” disagreed saying that the stay constituted a temporary breather during the busy holiday season. They were confident that Kennedy’s order would be reversed by the Supreme Court. I am not.
I assert that single Justices are permitted under Supreme Court Rule 23 where:
1) The lower court ruling permitting Na’i Aupuni was so contrary on its face a clear and binding Supreme Court decision, namely Rice v. Cayetano that the Supreme Court would reverse, or at least substantially modify the election process;
2) Where the permitted proceeding would resulting in dramatic and substantial changes to the society as a whole,
3) Constituted an issue that was sure to be heard by the Supreme Court as a whole
4) Where the decision to proceed with the election had been so rushed and expedited in that the federal recognition would have become law, denying to the Supreme Court the opportunity to reveal the legality of each separate step towards federal recognition.
Where a process was so at odds with Rice v. Cayetano it made no sense for the Supreme Court to step in after federal recognition, after the “bell had already been rung,” as was the case in Rice.
[See annotations to Supreme Court Rule 23]
Justice Kennedy was acting as many would: When is it wiser to stop the construction of a house to be built on a shaky foundation? Before construction or after? Justice Kennedy was simply staying all activity until the Supreme Court itself could, possibly, after greater fact-finding, determine whether Rice v. Cayetano ruled as to the result.
Justice Kennedy’s order showed his overwhelming concern with the constitutionality of a Hawaiian-based election in light of Rice v. Cayetano. Kennedy wrote the majority decision in Rice. It was unrealistic to expect Justice Kennedy uphold an election in the making when Rice was burdened by the election had already taken place.
Winners and Losers: The End of Federal Recognition is a Nail in the Coffin of Federal Jurisdiction
In my mind, there are no winners or losers when one considers the long term. Certainly, the immediate result in this case eliminates elections with only Native Hawaiian electors and Native Hawaiian candidates. Yet, the use of race, via the definition “Native Hawaiian” or “native Hawaiian,” is a creation of the United States, not the Hawaiian people.
This concept of Hawaiians as a race was invented to create housing programs and other state and federal entitlements to address the clear evidence of the wrongfulness of the overthrow, the impossibility of the United States annexation or acquisition of the dominion of Hawaii, massive programs aimed at denationalization, cultural destruction, and the imposition of the massive deception that the United States had acquired Hawaii by a mere joint resolution of Congress. The United States still stands by the impossible claim that it acquired the Hawaiian Islands and the crown and government lands by a unilateral act of Congress, an act, or bill, called here a joint resolution.
Why do all of us, both sides of the Na’i Aupuni debate, benefit from Kennedy’s order and its subsequent, inevitable denouement? Hawaiians benefit because Na’i Aupuni and the goal of federal recognition would have maintained the falsehood that the United States today has dominion and sovereignty over Hawaii.
A treaty would have acquired Hawaii. However, the Treaty of 1897 was rejected, not by the Hawaiian Senate but by the United States Senate. There was insufficient public support both in Hawaii and the United States to establish what is claimed today—the acquisition of and thus sovereignty over the Hawaiian Islands.
No joint resolution can acquire the dominion of another independent and sovereign state, for if such were true, the legislature of the nation of Hawaii could have acquired the whole of the United States.
Nor can the United States claim Hawaii by conquest or acquisitive prescription. Sections two of both the Organic Act of 1900 and the Statehood Act of 1959 define the territory of both the Territory and the State as empty—as those islands and waters acquired by the 1898 joint resolution. The State of Hawaii has no dominion as its dominion is defined: as “those islands acquired by the 1898 joint resolution.”
This imbecilic description of Hawaii’s boundaries was a necessary fact in light of the lack of a treaty. No islands were or could be acquired by a joint resolution. Thus, the United States cannot show how it actually received sovereignty.
Even more significant, the United States cannot show clean fee simple title to all crown and government lands for the joint resolution is the instrument that supposedly transferred title of all those 1.8 million acres of land to the United States.
The predicament, which many call “occupation” of one kind or another, is a fact seemingly well known at the higher levels of the United States government. This is an opportunity for those Hawaiian nationals who assert that they [including nationals of other nationalities] are subjects of a sovereign, independent state that still exists as a state under the law of occupation. The Kingdom has been recognized as a member of the international community of Nations since 1843 and in 1844 by the United States.
In a sense, the case of title in Hawaii is similar to that as to Guantanamo Bay. As explained in the 2008 Boumediene case, Guantanamo Bay is sovereign territory of Cuba, however, the United States exercises all power and control over Guantanamo. Nonetheless, Guantanamo is Cuban because Cuba never ceded Guantanamo to the United States.
In the Treaty of Paris of 1898, Spain ceded away Cuba, but not to the United States. The United States in Hawaii is in a similar situation –the United States cannot show any legal basis by which it received the sovereignty of the Hawaiian Islands [as in Cuba] from the underlying occupant—the nation called the Kingdom of Hawaii. Or, in the case of Cuba, sovereignty over Guantanamo Bay.
All Hawaiians are winners today. Taking federal recognition “off the table” frees Hawaiians from the persistent belief that their fate and status depends wholly on the existence of both United States jurisdiction and generosity.
The appropriate place of Hawaiians and Hawaiian nationals in Hawaii can begin only by an act arising from the sovereignty of the Hawaiian community as a political entity. This may take place in the form of self-proclamation of a provisional authority working towards eventual sovereignty [as in other countries] or, by a numerical majority that would be a convincing show of the will of the people, as to the re-investiture of the Kingdom of Hawaii. It is only Hawaiian nationals, over a transition period, where government is learned and developed, can Hawaiian nationals reach eve complete status as a nation and government.
Only the Sovereign Hawaiian State can legitimize the United States Presence in Hawaii
The real irony, for those who understand the connection between sovereignty and power is that if the United States is the occupying power in Hawaii [as it is in Iraq] and the Hawaiian nation is occupied sovereign state under international law –it is only the Hawaiian State can quiet and fix the breaks in land title as to lands claimed by the United States.
In short, the chain of title to crown and government lands shows a break in 1898—a break in which generations of territorial and state attorneys struggled to patch, but couldn’t. The executive orders acquiring crown and government lands are defective in that the United States has no territorial jurisdiction to quiet title to such lands.
A smart Hawaiian nation would use its power to legitimize United States lands to negotiate with the United States, trading the imprimatur of its stamp as to validity to crown and government lands, for both monies and substantial and essential pieces of lands now federally occupied.
The Next Steps
The more important question is what to do in the present. First, all the backbiting, fractionalization, accusations of Hawaiians being traitors, the hint of war crimes and the refusal of the many-sided Hawaiian split on federal recognition must stop: It was never pono. It is an embarrassment to the Kapu Aloha practiced on Mauna Kea. It ignores the common ground that Hawaiians share.
The Hawaiian future starts now, with the election and ‘aha. [But haven’t you declared the election “dead”] Yes, I declared “their” election, the states’ election, the ‘aha dead under “their law”—federal law.
What prevents a non-state election, followed by a aha not tied to state money or procedure, by which rules as to delegates, voting, will be written by Hawaiians, and even some non-Hawaiians? Who says I cannot speak out—if not certified by Na’i Aupuni? Who says we cannot call our own convention?
Hawaiians have been needing to meet, on their own terms, on their own money, at a Hawaiian place, to discuss the future of Hawaii. All models of government can be on the “table,” and all alternative futures can be discussed. Most of all, the study of countries that reached the goals we seek can begin under our own direction.
Why do we assume that the rules of the game are always “their rules” not ours. Two things made the federal recognition process somewhat attractive: money and its protection, as would be provided by the federal government, and both structure and the dominant end plan was provided by the state and federal governments.
Hawaiians can design and prepare their own plan. But, where do we get the money? –The Royals—the Alii Trusts. They too must to be weaned away from their reliance on “the bottom line” a “bottom line” that compels fitting within federal tax rules that prohibiting political activities.
It is time for the Royals and the Alii to re-assert that historical status in society—their leadership and the provision of resources where accumulation of wealth never was a substitute for the obligations of alii—to be kahu, of kuleana of the lands, of pono and the welfare of the people. The Alii shall lead and feed the people. The people shall take care of their kuleana and always feed their Alii. It’s a new day in Hawaii.